DNA Collected During Arrest and the Fourth Amendment

Justices Wrestle Over Allowing DNA Sampling at Time of Arrest

Published: February 26, 2013

WASHINGTON — About halfway through a Supreme Court argument on Tuesday over whether the police may take DNA samples from people they arrest, Justice Samuel A. Alito Jr. reflected on just how momentous the issue was.

“I think this is perhaps the most important criminal procedure case that
this court has heard in decades,” he said, adding: “This is what is at
stake: Lots of murders, lots of rapes that can be solved using this new
technology that involves a very minimal intrusion on personal privacy.”

“Why isn’t this the fingerprinting of the 21st century?” he asked.

But the value of such evidence to law enforcement was only one side of
the equation, Justice Antonin Scalia said after hearing that Maryland
had obtained 42 convictions based on DNA from people arrested there.

“Well, that’s really good,” Justice Scalia said. “I’ll bet you if you
conducted a lot of unreasonable searches and seizures, you’d get more
convictions, too. That proves absolutely nothing.”

Justice Ruth Bader Ginsburg seemed to agree that the practice may run
afoul of the Fourth Amendment, which generally requires a warrant or
individualized suspicion before police may conduct a search. “This is a
very reliable tool,” she said, “but it’s not based on any kind of
suspicion of the individual who’s being subjected to it.”

The case arose from the collection of DNA in 2009 from Alonzo Jay King
Jr. after his arrest on assault charges in Wicomico County, Md. His DNA
profile, obtained by swabbing his cheek, matched evidence from a 2003
rape, and he was convicted of that crime. Last April, the Maryland Court
of Appeals ruled that a state law authorizing DNA collection from
people arrested but not yet convicted violated the Fourth Amendment.

In July, before the Supreme Court agreed to hear the case, Chief Justice John G. Roberts Jr.issued a stay
of the lower court decision, saying that collecting DNA from people
accused of serious crimes is “an important feature of day-to-day law
enforcement practice in approximately half the states and the federal
government.”

Collecting DNA from people convicted of crimes was not at issue in the
case argued Tuesday, Maryland v. King, No. 12-207. The question was,
rather, whether the Fourth Amendment allowed collecting it from people
who have merely been arrested and so are presumed innocent.

The chief justice seemed wary of going too far, too fast. The Maryland
law, he said, is limited to people arrested for serious crimes. But
other laws are broader, and the state’s argument did not have an obvious
stopping point.

“Under your theory, there’s no reason you couldn’t undertake this
procedure with respect to anybody pulled over for a traffic violation?”
Chief Justice Roberts asked Katherine Winfree, the state’s chief deputy
attorney general. She said drivers might have a reasonable expectation
of privacy that people arrested for serious crimes do not.

She added that people under arrest lose an array of rights. Last year, the court ruled that they may be subjected to strip searches if admitted to a jail’s general population.

Justice Elena Kagan said there must be limits, saying an arrest would
not justify the search of an individual’s home for possible evidence of
an unrelated crime. She added that under the state’s theory, the law
enforcement interest in solving crimes could be used to justify
obtaining a DNA sample in many settings.

“Why don’t we do this for everybody who comes in for a driver’s license
because it’s very effective?” she asked, rhetorically.

Chief Justice Roberts wondered whether there is a reasonable expectation
of privacy in genetic material that may be easy to obtain in other
ways. “You disclose all of this intimate private information,” he said,
“when you take a drink of water and leave the glass behind.”

Much of the argument concerned whether DNA is like fingerprint evidence.
Kannon K. Shanmugam, a lawyer for Mr. King, said the two were
different, as fingerprints are generally used to identify suspects. DNA,
on the other hand, he said, is used for a purpose unrelated to the
arrest: to solve cold cases, he said.

Several justices seemed interested in a third way DNA could be used: to
assist judges in making bail determinations. For now, they were told,
turnaround times are too long to make that practicable.

But Michael R. Dreeben, a lawyer for the federal government, which
supported Maryland, said the day would soon arrive when DNA could be
analyzed in 90 minutes. Ms. Winfree agreed. “This is not science
fiction,” she said. “We are very, very close to that.”

Chief Justice Roberts said that left the court in a difficult position.
“How can I base a decision today on what you tell me is going to happen
in two years?” he asked.

For now, Justice Scalia said, the law’s purpose is “to catch the bad
guys, which is a good thing.” But, he added, “the Fourth Amendment
sometimes stands in the way.”